CRL RC/641/2020 of SAKTHIVENKATESHWARALU Vs STATE REP. BY on 31 December 2020

IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED ON : 21.12.2020 PRONOUNCED ON : 31.12.2020CORAM

THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.R.C.No.641 of 2020

Sakthivenkateshwaralu S/o.Janarthanam ... PetitionerVs.

State rep.by The Inspector of Police, Poraiyar Police Station, Nagapattinam District. (Crime No.666/2020) ... Respondent PRAYER: Criminal Revision Petition filed under Sections 397r/w. 401 of Criminal Procedure Code to set aside the orderdated 10.07.2020 made in Crl.M.P.No.1760 of 2020 on the file ofthe District and Sessions Judge, Nagapattinam by allowing thispetition.

For Petitioner : Mr.M.GuruprasadFor Respondent : Mr.C.Iyyappa Raj Additional Public Prosecutor In continuation and conjunction to the orderpassed by this Court dated 20.11.2020, this Court is inclinedto pass the following order.

2. It is seen that in majority of the cases, either the casehas been registered by the respondent Police based on thecomplaint given by the Revenue Authorities or by the officialsof the Mines and Minerals Department, the caseproperties/vehicles are taken into custody. After registrationof FIR, despite specific order of the Division Bench of theMadurai Bench of Madras High Court in Review Applications (MD)

Nos.80 to 82 of 2019 in W.P(MD).No.19936 of 2017, 7595 and21485 of 2018 that the Police as well the authorized officersare directed to inform the registration of the case to eachother within a week, the same is followed in breach. Due towhich, there have been no complaint filed as per Section 22 ofthe Mines and Minerals (Development and Regulation) Act, 1957.The prosecution under the Indian Penal Code and the Mines andMinerals (Development and Regulation) Act, 1957 are distinct asheld by the Hon'ble Apex Court in the case of “State (NCT ofDelhi) Versus Sanjay reported in (2014) 9 Supreme Court Cases772”, which has been reiterated by the Division Bench of thisCourt and gave various guidelines that the complaint by theauthorized person to be made immediately not later than oneweek from the date of seizure. Both the complaint registeredby the Police and the complaint of the authorized person to betried by the same Court. As per Section 30 (B), the SpecialCourts have come in place.

3. In most of the cases, FIR's are filed before theMagistrate Court in which charge sheet are yet to be filed andcommitted to the Special Court. The authorized person have notinitiated any complaint. It is seen that the authorizedpersons, who lodged complaint to the jurisdictional Police havenot filed any complaint under Mines and Minerals Act. This isin clear violation of the directions of this Court.

4. The learned Additional Public Prosecutor produced G.O.(Ms).No.170 (Industries (MMC.2) Department), dated 05.08.2020and submitted that the guidelines have been issued to all theofficers concerned, including the authorized officer to followthe directions of the Division Bench of the Madurai Bench ofMadras High court. Despite the same, the anomaly still exists.He further submitted that in the Government Order, in additionto the authorised authorities, jurisdictional Inspector ofPolice are also authorised to make a complaint in writing byway of affidavit under Section 22 of the Mines and Minerals(Development and Regulation) Act, 1957. As per Section 2(d) ofCr.P.C., the complaint does not include the police report. Nodoubt the cases under the Mines and Minerals (Development andRegulation) Act, 1957 are cognizable offence. The inclusion ofPolice personnels viz., the Inspector of Police as authorized,had created a grey area. The Division Bench of the MaduraiBench of Madras High Court, had clearly held revenueofficial/officer authorized is only to seize and not confiscateor dispose the mineral, tool, equipment, vehicle etc., and thesame to be dealt only by the Special Court. It is seen thatdespite issuance of G.O.(Ms).No.170 (Industries (MMC.2)Department), dated 05.08.2020, the situation has not improved.Further, the Madurai Bench of this Court, as early in the year2012, in the case of “Sengol & others Versus State reported in2012 Crl.J 1705” had clearly held that the ingredients under Section 378 IPC and offence punishable under Section 21 of theMines and Minerals (Development and Regulation) Act, 1957 aredistinct and there is no quarrel about it. The Apex Court inthe case of “State (NCT of Delhi) Versus Sanjay” (cited supra),issued guidelines in this regard and highlighted the importanceof curbing illicit sand mining and plundering of natural wealthand it would be beneficial to extract relevant paragraphs:- “69.Considering the principles of interpretationand the wordings used in Section 22, in ourconsidered opinion, the provision is not a completeand absolute bar for taking action by the police forillegal and dishonestly committing theft of mineralsincluding sand from the riverbed. The Court shalltake judicial notice of the fact that over the yearsrivers in India have been affected by the alarmingrate of unrestricted sand mining which is damagingthe ecosystem of the rivers and safety of bridges. Italso weakens riverbeds, fish breeding and destroysthe natural habitat of many organisms. If theseillegal activities are not stopped by the State andthe police authorities of the State, it will causeserious repercussions as mentioned hereinabove. Itwill not only change the river hydrology but alsowill deplete the groundwater levels.

70. There cannot be any dispute with regard torestrictions imposed under the MMDR Act and remedyprovided therein. In any case, where there is amining activity by any person in contravention of theprovisions of Section 4 and other sections of theAct, the officer empowered and authorised under theAct shall exercise all the powers including making acomplaint before the Jurisdictional Magistrate. It isalso not in dispute that the Magistrate shall in suchcases take cognizance on the basis of the complaintfiled before it by a duly authorised officer. In caseof breach and violation of Section 4 and otherprovisions of the Act, the police officer cannotinsist the Magistrate for taking cognizance under theAct on the basis of the record submitted by thepolice alleging contravention of the said Act. Inother words, the prohibition contained in Section 22of the Act against prosecution of a person except ona complaint made by the officer is attracted onlywhen such person is sought to be prosecuted forcontravention of Section 4 of the Act and not for anyact or omission which constitutes an offence underthe Penal Code.

71. However, there may be a situation where aperson without any lease or licence or any authority enters into river and extracts sand, gravel and otherminerals and remove or transport those minerals in aclandestine manner with an intent to removedishonestly those minerals from the possession of theState, is liable to be punished for committing suchoffence under Sections 378 and 379 of the Penal Code.72.From a close reading of the provisions of theMMDR Act and the offence defined under Section 378IPC, it is manifest that the ingredients constitutingthe offence are different. The contravention of termsand conditions of mining lease or doing miningactivity in violation of Section 4 of the Act is anoffence punishable under Section 21 of the MMDR Act,whereas dishonestly removing sand, gravel and otherminerals from the river, which is the property of theState, out of the State's possession without theconsent, constitute an offence of theft. Hence,merely because initiation of proceeding forcommission of an offence under the MMDR Act on thebasis of complaint cannot and shall not debar thepolice from taking action against persons forcommitting theft of sand and minerals in the mannermentioned above by exercising power under the Code ofCriminal Procedure and submit a report before theMagistrate for taking cognizance against suchpersons. In other words, in a case where there is atheft of sand and gravel from the government land,the police can register a case, investigate the sameand submit a final report under Section 173 CrPCbefore a Magistrate having jurisdiction for thepurpose of taking cognizance as provided in Section190(1)(d) of the Code of Criminal Procedure.

73. After giving our thoughtful consideration inthe matter, in the light of the relevant provisionsof the Act vis-à-vis the Code of Criminal Procedureand the Penal Code, we are of the definite opinionthat the ingredients constituting the offence underthe MMDR Act and the ingredients of dishonestlyremoving sand and gravel from the riverbeds withoutconsent, which is the property of the State, is adistinct offence under IPC. Hence, for the commissionof offence under Section 378 IPC, on receipt of thepolice report, the Magistrate having jurisdiction cantake cognizance of the said offence without awaitingthe receipt of complaint that may be filed by theauthorised officer for taking cognizance in respectof violation of various provisions of the MMDR Act.Consequently, the contrary view taken by thedifferent High Courts cannot be sustained in law and,therefore, overruled. Consequently, these criminalappeals are disposed of with a direction to the Magistrates concerned to proceed accordingly.”

Magistrates concerned to proceed accordingly.”

5. It is clearly held that compounding the offence undersection 23(A) of the Mines and Minerals (Development andRegulation) Act, 1957, would no way absolve the offender.Further despite this Court's specific direction to theconcerned authorities, the authorities failed to get sensitizedand become aware of seriousness of the offence. Hence, theissuance of G.O.(Ms).No.170 (Industries (MMC.2) Department),dated 05.08.2020, appears to be only in paper, not in action.

6. It is submitted by the learned Additional PublicProsecutor that in view of Section 23(A) of Mines and Minerals(Development and Regulation) Act, 1957, after compounding theoffence, it would be difficult for the authorities to file acomplaint. Further, authorizing the Police personnel to file acomplaint would be against Section 2(d) of Cr.P.C. Theinclusion of Police Officials to file a complaint may be aabrasion. The Police personnel referred in G.O.(Ms).No.170(Industries (MMC.2) Department), dated 05.08.2020, are only inaddition to the Revenue Authorities, the officials of the Minesand Minerals and authorised officers. The addition of PoliceOfficials as authorised officers would no way take away theright and be an obstacle to the other authorised officers tofile a complaint as contemplated. Further, compounding ofoffence under Section 23(A) of theMines and Minerals(Development and Regulation) Act is only with regard to theloss of revenue to the State and not the offence. The anomaly,if any felt, in issuance of Government Order, the same can berectified. The Act is clear on these aspects, which is furtherclarified by the Division Bench of Madurai Bench of Madras HighCourt in its order.

7. The learned Additional Public Prosecutor relied on thejudgment of the Apex Court in the case of “Jayant Etc., VersusThe State of Madhya Pradesh in Criminal Appeal Nos.824-825 of2020”, for the preposition that once the case under MM DR Actis compounded, whether a complaint can be filed under Section22 of MM DR Act.

8. The view of this Court is that the grey area pointed outfound in G.O.(Ms).No.170 (Industries (MMC.2) Department), dated05.08.2020, will no way absolve the rights and duties of theauthorized officers in filling the complaint before thedesignated Special Court. The case property if already handedover to the Police and the Police investigation is pending, theseizure report, panchnama, Form-95 or other documents, acertified copy can be annexed in the complaint of theauthorized officer, the Special Court to accept the same asproof of seizure.

9. The answer to the contention of the learned AdditionalPublic Prosecutor is available in the case of “Jayant Etc.,Versus The State of Madhya Pradesh in Criminal Appeal Nos.824-825 of 2020” and the relevant portion is extracted hereunder:-

“However, our above conclusions are consideringthe provisions of Section 23A of the MMDR Act, as itstands today. It might be true that by permitting theviolators to compound the offences under the MMDR Actor the rules made thereunder, the State may get therevenue and the same shall be on the principle ofperson who causes the damage shall have to compensatethe damage and shall have to pay the penalty like theprinciple of polluters to pay in case of damage tothe environment. However, in view of the large scaledamages being caused to the nature and as observedand held by this Court in the case of Sanjay (supra),the policy and object of MMDR Act and Rules are theresult of an increasing awareness of the compellingneed to restore the serious ecological imbalance andto stop the damages being caused to the nature andconsidering the observations made by this Court inthe aforesaid decision, reproduced hereinabove, andwhen the violations like this are increasing and theserious damage is caused to the nature and the earthand it also affects the ground water levels etc. andit causes severe damage as observed by this Court inthe case of Sanjay (supra), reproduced hereinabove,we are of the opinion that the violators cannot bepermitted to go scot free on payment of penalty only.There must be some stringent provisions which mayhave deterrent effect so that the violators may thinktwice before committing such offences and beforecausing damage to the earth and the nature.

It is the duty cast upon the State to restorethe ecological imbalance and to stop damages beingcaused to the nature. As observed by this Court inthe case of Sanjay (supra), excessive in stream sandand gravel mining from river beds and like resourcescauses the degradation of rivers. It is furtherobserved that apart from threatening bridges, sandmining transforms the riverbeds into large and deeppits, as a result, the groundwater table dropsleaving the drinking water wells on the embankmentsof these rivers dry. Even otherwise, sand/mines is apublic property and the State is the custodian of thesaid public property and therefore the State shouldbe more sensitive to protect the environment andecological balance and to protect the public propertythe State should always be in favour of taking verystern action against the violators who are creating

serious ecological imbalance and causing damages tothe nature in any form. As the provisions of Section23A are not under challenge and Section 23A of theMMDR Act so long as it stands, we leave the matterthere and leave it to the wisdom of the legislaturesand the concerned States.”

10. In view of the above, the directions of Division Benchof Madurai Bench of Madras High Court has to be followedwithout any deviation. This Court following the case of“Sunderbhai Ambalal Desai Vs. State of Gujarat reported inMANU/SC/1110/2002 and AIR 2003 638”, is inclined to return thevehicle to the petitioner. Hence, the interim custody of thevehicle viz., Lorry bearing Registration No.TN-45-BJ-4752already granted by this Court, by order, dated 20.11.2020 shallbe continued with the same conditions.

11. This Court hereby directs the authorized Officers tofile complaint before the Special Court and the Special Courtto take the same on file, try it along with the Police case andto dispose both the cases. The Special Court is also directedto initiate and conclude the confiscation proceedings.

12. In the result, the order dated 10.07.2020 passed by thelearned District and Sessions Judge, Nagapattinam inCrl.M.P.No.1760 of 2020 is set-aside and the revision is,accordingly, allowed.

Sd/-

Assistant Registrar(CS VII)

ssbTo

//True Copy// Sub Assistant Registrar

1. The District and Sessions Court,

Nagapattinam.

2. The Inspector of Police, The State,Poraiyar Police Station, Nagapattinam District.

3. The Officer Incharge,The District Mines and Minerals Foundation Trust,Nagapattinam.

4. The Public Prosecutor,High Court, Madras.High Court, Madras.

Crl.R.C.No.641 of 2020

CO(LN)

BDL/21/01/2021